Gennetten v. State

• Decision Date: 31 January 2003
• Docket Number: No. WD 60416.,WD 60416.
• Citation: Gennetten v. State, 96 S.W.3d 143 (Mo. App. 2003)
• Parties: Michael F. GENNETTEN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

96 S.W.3d 143

Michael F. GENNETTEN, Appellant, v. STATE of Missouri, Respondent.

No. WD 60416.

Missouri Court of Appeals, Western District.

January 31, 2003.

Michael L. McDorman, Versailles, MO, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Adriane Dixon Crouse, Assistant Attorney General, Jefferson City, MO, for respondent.

Before BRECKENRIDGE, P.J., HOWARD and HOLLIGER, JJ.

PATRICIA BRECKENRIDGE, Judge.

Michael F. Gennetten appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Mr. Gennetten was convicted after a jury trial of second degree murder, section 565.021, RSMo 2000.¹ The trial court sentenced him to thirty years imprisonment. On appeal, Mr. Gennetten alleges that he received ineffective assistance of counsel, in that his trial counsel failed to investigate and present testimony from three expert witnesses, failed to file a timely discovery request, failed to submit a jury instruction on the lesser-included offense of involuntary manslaughter, and failed to impeach the prosecution's expert witness. This court finds that Mr. Gennetten's trial counsel was ineffective for failing to investigate and call Dr. Ronald Sharp as a witness at trial when Dr. Sharp was available, known to trial counsel, and would have provided a viable defense. Accordingly, the judgment denying his post-conviction motion is reversed, the conviction and sentence are vacated, and the cause is remanded for a new trial. Consequently, this court does not need to consider the issues raised in Mr. Gennetten's remaining points, as they are unlikely to occur on retrial.

Facts and Procedural History

On December 9, 1994, Mr. Gennetten and Asia Howell arrived at Bothwell Hospital in Sedalia. Asia, who was fifteen months old, was unconscious, her teeth were clenched, her pupils were fixed and dilated, and her breathing was noisy. Mr. Gennetten told the emergency room nurses that Asia had choked on a French fry and that he may have shaken her too hard in trying to expel it. The hospital personnel did not find any obstructions in Asia's airway, and, after pumping her stomach, they did not find any food particles.

During Asia's examination, a nurse noticed burns on Asia's body and on the tops of her feet, in different stages of healing. Mr. Gennetten told the nurse that the burns on Asia's feet occurred when she fell into the bathtub, wearing socks, while the hot water was running. A CAT scan revealed that blood had accumulated between Asia's brain and skull and she had retinal bleeding in both of her eyes. The doctors did not expect Asia to regain consciousness, so they transferred her to Children's Mercy Hospital in Kansas City for further treatment. Asia was declared dead on December 13, 1994.

Dr. James Berkland, Jackson County medical examiner, performed an autopsy on Asia. He determined that Asia's immediate cause of death was "diffuse extensive cerebral edema as result of closed head trauma, with subdural hematoma and subarachnoid bleeding," which were consistent with shaken baby impact syndrome. He reached the conclusion that her head injuries were consistent with an intentional injury, and were inconsistent with an improperly performed Heimlich maneuver or any other accidental cause. Dr. Berkland also observed burns to Asia's right chest, left back, left and right tops of the feet and formed the belief that the burns upon Asia's body were of three different ages.

Subsequently, the State charged Mr. Gennetten by information with second degree murder, § 565.021, and two counts of assault in the first degree, § 565.050, for knowingly burning Asia's feet and legs on two separate occasions. A jury trial was held from October 16 to October 19, 1995. The prosecutor dismissed the assault charges on the first day of trial.

At trial, the State presented testimony from Dr. Berkland regarding his findings from Asia's autopsy. In addition, Dr. Berkland testified that the burns on Asia's feet were not consistent with submerged burns, which occur when a child is put in hot water, but were instead consistent with an inflicted injury. He testified that the burns had occurred over a period of time, and she had a burn within a burn on her right foot. Based on all of these facts, he concluded that, in his opinion, Asia's death was the result of "fatal child abuse," which he defined as "multiple repeated episodes at different times of intentional inflicted injuries to a child with a subsequent death of the child as a result of one of those injuries."

The State also introduced into evidence Asia's medical records from Bothwell Hospital and Children's Mercy Hospital. Included in the records were the consultation notes of Dr. James Kelly, a doctor who treated Asia at Children's Mercy Hospital. According to Dr. Kelly's notes, Asia suffered from "acute left subdural hematoma," "left severe cerebral edema," "a number of bilateral retinal hemorrhages," "old second and third degree burns of different stages of healing," and "recent bruising to the right side of the neck." Dr. Kelly noted that these "injuries [were] consistent with inflicted intentional pattern of abuse."

Also included in the medical records was the consultation report from the radiology department, signed by Dr. Stacy Stevens, a doctor at Children's Mercy Hospital who had reviewed Asia's CAT scan. In the report, Dr. Stevens noted that the results of Asia's CAT scan "suggests severe anoxic/traumatic brain injury and is inconsistent with a history of accidental trauma." In addition, the medical records included Asia's death summary, which was stamped with Dr. Ronald Sharp's signature. According to the death summary's discharge diagnosis, at the time of her death, Asia suffered from a "severe closed head injury" and "second and third degree burns to lower extremities." The death summary also stated that child abuse was suspected.

Mr. Gennetten presented two medical witnesses in his defense at trial. The first medical witness, Libby Bannister, was a licensed practical nurse who had not personally seen or treated Asia. Ms. Bannister testified about the amount of medication given to Asia based on her review of Asia's medical records. The second medical witness was Dr. Stacy Stevens, the doctor at Children's Mercy Hospital who reviewed Asia's CAT scan and prepared the consultation report admitted into evidence by the State. Dr. Stevens testified that he diagnosed Asia with a subdural hematoma with left cerebral edema. He also testified that the subdural hematoma was less than seven days old and the edema could have been anywhere from less than twelve to twenty-eight hours old. On cross-examination, Dr. Stevens testified that his impression of Asia's injury was that it was "non accidental," meaning it was caused by "child abuse."

Mr. Gennetten also testified on his own behalf and recounted the events of the night of December 9. On direct examination, Mr. Gennetten testified that he was taking care of Kim Howell's children, Asia and Chris, for the weekend. He testified that he had started dating Ms. Howell in the first part of October 1994 and had already taken care of Chris and Asia overnight on at least three occasions since he met Ms. Howell. He claimed that on the night of December 9, after he had put Chris to bed, he and Asia ate dinner in front of the television in the living room. Mr. Gennetten stated he went to the bathroom and, while he was in the bathroom, he heard Asia choking. He claimed he came out of the bathroom and found her on her hands and knees in front of the bathroom door making choking sounds. Mr. Gennetten testified that he put his fingers in her mouth and down her throat to try to remove the blockage, but he did not feel anything. He said he then picked her up, squeezed her stomach, and hit her several times on her back between her shoulder blades. He testified that Asia finally spit out a chewed-up French fry and some liquid. Mr. Gennetten stated that soon after, he noticed that Asia looked distant and glassy-eyed and was making a rattling noise when she breathed. Mr. Gennetten testified that he called Ms. Howell and then took Asia to the hospital.

Mr. Gennetten testified that he later learned from a Red Cross pamphlet that the method he had used to stop Asia from choking was improper. He further testified that he was not trying to harm Asia when he tried to stop her from choking.

Mr. Gennetten also testified regarding Asia's burns. He stated that while he was watching Chris and Asia on the weekend of November 19, Asia fell into the bathtub, wearing socks, while the hot water was running. He testified that there was no plug in the bathtub, so there was not a lot of water in the bathtub when Asia fell in. He also testified that a towel he had draped on the side of the bathtub fell in with Asia. He further testified that he pulled Asia out of the bathtub and, when he took off her socks, he noticed big white blisters on her feet. He also said that he was not aware of any other burns on Asia's body.

During closing arguments, the prosecutor argued that in determining whether Mr. Gennetten was guilty of second degree murder, the jury should "[r]emember [Mr. Gennetten's] other misconduct with [Asia] in deciding what his intent was." The prosecutor listed all of the evidence about Asia's injuries, emphasizing the burns on her feet, and repeatedly told the jury to look at all of these injuries to decide Mr. Gennetten's intent on the night of December 9. The jury was instructed, in Instruction No. 7, that it could consider the evidence that the defendant was involved in offenses other than the one for which he was on trial "on the issue of intent and absence of mistake or accident of [Mr. Gennetten]."

At the end of the trial, the jury found Mr. Gennetten guilty of second degree murder. The trial court sentenced Mr. Gennetten to thirty years imprisonment. On April 15, 1997, this court affirmed Mr....